XIII. EMPLOYERS MUST ENFORCE MINING

RULES

When rules have been promulgated in accordance with section 119, it is obligatory upon the employer to see to it that they are enforced; and where he is derelict in his duty, he will be liable for the consequences of his disobedience. An abstract of the opinion follows:

MAUTSEWICH V. UNITED STATES GYPSUM Co., 217 N. Y. 593 (April 11, 1916), abstract, aff'g 162 App. Div. 907.

In this case it appeared that a mine rule had been promulgated by the commissioner of labor with reference to the safety of employees where blasting had been done. The rule required that the blasting be done by one man and his helper; that no one except the blaster or blasters should be allowed in the room until the blaster or blasters had made a personal examination and pronounced the place safe; that the mine superintendent or other person designated by him should daily examine all mine appliances; and that if a blast missed fire, no one except the blaster should be allowed in the room within 3 hours, unless the blaster made a personal examination and found the place safe. Plaintiff, a driller, went to a part of the mine where he had never worked, and at the direction and order of the foreman, was about to drill holes. There was some conflict in the evidence as to an existing hole. However, the evidence tended to show that the foreman ordered plaintiff to measure the hole with his drill. An explosion followed, injuring him. Disposing of an appeal from a judgment in plaintiff's favor the court said:

"The common-law duty of an employer toward his employee is to provide a reasonably safe place for him to work. That duty includes the duty of reasonable inspection of the place and of the appliances for work.

"The legislature, by directing the commissioner of labor to see that every necessary precaution is taken to insure the safety and health of employees employed in mines and quarries and in the construction of tunnels of the state and to prescribe rules and regulations therefor, intended to supplement the common-law rules relating thereto and thereby further to insure the safety of those employed in such dangerous employments. Statutory directions in regard to machinery and appliances and the manner in which work shall be performed made in the interests of human life and to insure

It is the

the safety and health of employees are ordinarily compulsory. duty of employers not only to adopt the rules of the commissioner of labor [now the Industrial Commission] made pursuant to statute, but to enforce them. If the rules of the commissioner of labor quoted, after written notice by him, are to be obeyed, the employer is liable criminally. (Penal Laws, 1270; Labor Law, § 134.) The employer is also subject in case of an injury resulting from their disobedience to the ordinary consequences arising from negligence. (Scott v. International Paper Co., 204 N. Y. 49; Marino v. Lemaier, 173 N. Y. 530; Racine v. Morris, 201 N. Y. 240; Shields v. Pugh & Co., 122 App. Div. 586; Armenti v. Brooklyn Union Gas Co., 157 App. Div. 276; Caddy v. Interborough Rapid Transit Co., 195 N. Y. 415.) Where a duty of inspection rests upon a person or corporation it cannot be delegated so as to relieve such person or corporation from the consequences of a failure to inspect or of an adequate inspection. (Smith v. New York, Chicago & St. L. R. Co., 86 App. Div. 188; affd., 178 N. Y. 635.) "If a defective and dangerous condition of a place of employment or of an appliance could have been discovered by a reasonable inspection, an inadequate and insufficient inspection which failed to discover such defect or danger will not relieve an employer from liability arising out of such defect or danger. (Smith v. New York, Chicago & St. L. R. Co., supra.)

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'It has become one of the axioms of negligence law that the duty of inspection is the master's duty and one that cannot be delegated so as to relieve the master from responsibility. If a servant performs this duty he is the alter ego of the master and for any negligence in his discharge of that duty the latter is liable. (Koehler v. New York Steam Co., 183 N. Y. 1, and cases eited; Simone v. Kirk, 173 N. Y. 7; Mahoney v. Cayuga Lake Cement Co., 208 N. Y. 164.)"

XIV. HOURS OF LABOR OF MINORS AND WOMEN

A. DRUG STORE AS "MERCANTILE ESTABLISHMENT " Defendant, a corporation engaged in the drug business, who was prosecuted for the violation of section 161, subdiv. 2, relating to the employment of females and children, contended that working hours of its employees were fixed by section 236 of the Public Health Law. The prosecution was based upon the theory that the defendant's store sold other things besides "drugs, medicines, chemicals, prescriptions or poisons," and, therefore, constituted a mercantile establishment within the meaning of the Labor Law. The Appellate Division, First Department, affirmed a judgment of the Court of Special Sessions convicting the defendant of violation of the Labor Law. The Court of Appeals affirmed this judgment, without opinion. People v. Louis K. Liggett Co., 227 N. Y. 617 (Nov. 18, 1919), aff'g 184 App. Div. 934.

B. CHEWING GUM BOOTH A MERCANTILE ESTABLISHMENT PEOPLE V. LUNA AMUSEMENT Co., 178 App. Div. 797 (June 8, 1917), abstract.

In affirming a conviction in the County Court of Kings for violation of subdivision 2 of section 161 of the Labor Law, which forbids the employment after 10 P. M. of females over sixteen years of age in mercantile establishments, the Appellate Division, Second Department, has held that neither the dimensions of a shop nor the magnitude of sales therein are determinative of the question whether such shop is within the statute. A booth, six feet square, where chewing gum is sold was held to be a "mercantile establishment."

XV. TENEMENT, MANUFACTURE OF BABIES' BIBS PROHIBITED WITHIN - - CONSTITUTIONALITY OF SECTION

The questions have been raised as to whether babies' bibs are within the articles, the manufacture of which in tenements is prohibited by section 104 of the Labor Law, and if so, whether said section is constitutional. The following opinion, given in full, setting forth the facts and contentions of the parties, disposes of the questions:

PEOPLE V. RAPORT, 193 App. Div. 135 (July 2, 1920).

MERRELL, J.: Defendant upon conviction was sentenced to pay a fine of $20, which fine was paid. The defendant appeals from such conviction, elaiming first, that certain articles, manufactured and finished, to wit, babies' bibs, were not wearing apparel within the provisions of the statute. The appellant also contends that the statute itself is unconstitutional as discriminatory and denying certain classes of people, and particularly the defendant, the equal protection of the law guaranteed by section 1 of the Fourteenth Amendment to the Federal Constitution.

Section 104 of the Labor Law (as amd. by Laws of 1913, chap. 260), for the violation of which the defendant has been convicted, provides as follows:

" 104. Manufacturing of certain articles in tenements prohibited. No article of food, no dolls or dolls' clothing and no article of children's or infants' wearing apparel shall be manufactured, altered, repaired or finished, in whole or in part, for a factory, either directly or through the instrumentality of one or more contractors or other third person, in a tenement house, in any portion of an apartment, any part of which is used for living purposes."

The penalty imposed upon the defendant for the violation of said section is provided by section 1275 of the Penal Law (as amd. by Laws of 1913, chap. 349), which provides that any person violating a provision of the Labor Law is guilty of a misdemeanor and upon conviction is punishable for the first offense by a fine of not less than twenty nor more than fifty dollars. Upon defendant's conviction the minimum sentence provided by said law was imposed.

The evidence shows that the defendant had a factory at 2292 Arthur ave nue, borough of The Bronx, New York city, and that said defendant employed a woman to do the stitching on twenty-four dozen babies' bibs; that on September 5, 1919, the said woman was doing the work in question in her apartment in a twenty-family tenement house at 2540 Cambrelling avenue, borough of The Bronx. No evidence was introduced on the part of the defendant, and the facts above stated appear undisputed and uncontradicted in the evidence. It is the contention, as before stated, of the defendant, appellant, that the articles in question were not articles of “infants' wearing apparel" within

the meaning of the statute; and, secondly, that if the statute can be construed as applying to the articles in question, to wit, babies' bibs, it is unconstitutional.

The law is of course enacted as a health measure, for the protection of the health of infants, and the very purposes of the statute have been violated by the acts of the defendant in the case at bar. There can be no question but that the bibs which the defendant was manufacturing were articles of wearing apparel. The cases are many holding that similar articles are wearing apparel, and that wearing apparel is not confined to clothing, hats and shoes, but that any article intended and adapted to be worn on the person and necessary and proper for the protection of the person or for the person's personal comfort comes within the definition of wearing apparel. There can be no question but that the bibs manufactured by the defendant were to be worn as a part of the apparel of infants. A thin lace collar to be worn on a woman's neck has been held by the courts to be wearing apparel, although worn merely for ornamentation. (Matter of Evans & Co., 158 Fed. Rep. 153; Arnold v. United States, 147 U. S. 494; Matter of Steele, 22 Fed. Cas. 1202.)

The appellant devotes a large part of his brief in an attempt to argue that the bibs manufactured by the defendant were not wearing apparel. It seems to be that the proposition is too plain to require any extended discussion. The articles themselves, as before stated, are worn by infants and a contract made for their manufacture in tenement houses and in unclear surroundings comes directly within the intent and meaning of the statute. As to the constitutional question upon which the defendant relies, that question was not raised upon the trial, and the defendant should not be permitted to assert the same upon this appeal for the first time. (People v. Ostrander, 144 App. Div. 860; Dodge v. Cornelius, 168 N. Y. 242.) The sole defense interposed by the defendant upon the trial was that the bibs in question were not wearing apparel within the meaning of the statute. No attempt was made upon the trial to raise any question as to the constitutionality of the statute, and, therefore, if a defense, it must be deemed to have been waived.

However, it seems to me that section 104 of the Labor Law was entirely constitutional and a valid exercise of the police power of the Legislature. It was enacted purely as a health measure in order to protect the health of children, a matter of the utmost importance. The statute reads that "No articles of food, no dolls or dolls' clothing and no article of children's or infants' wearing apparel shall be manufactured, altered, repaired or finished, in whole or in part, for a factory, either directly or through the instrumentality of one or more contractors or other third person in a tenement house, in any portion of an apartment, any part of which is used for living purposes." The appellant raised the point that the statute is discriminatory in that it prohibits the manufacture in tenement houses of the articles of wearing apparel for infants only in cases where such manufacture is for a factory, and that under the statute an individual not a factory would have the right to engage in the manufacture of such articles in the prohibited places. I do not think the statute is susceptible of the interpretation which the defendant attempts to put upon it. By section 2 of the Labor Law (as amd. by Laws of 1917, chap. 694) a factory" is defined as including "any mill, workshop, or

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